Supreme Court Justices Still Sharp In Oral Arguments Without Scalia

In arguments over drugs found on a man who was stopped by police in Utah, the more liberal justices raised issues about the courts in Ferguson, Missouri, while those on the right asked about violence against police officers.

People wait in line outside the Supreme Court building before oral arguments on Monday, February 22, 2016.

WASHINGTON — The Supreme Court justices met on Monday morning to hear oral arguments for the first time since the unexpected death of former Justice Antonin Scalia earlier this month.

Scalia's seat on the court's bench is vacant, draped in black, as is the court's tradition, according to the Public Information Office of the court. The session opened with Chief Justice John Roberts taking a few minutes to note the court's mourning of their colleague, noting that he authored nearly 300 majority opinions for the court.

"He was also known, on occasion, to dissent," Roberts added.

Dissent will continue on the court in Scalia's absence — as will the at-times-sharp exchanges in oral arguments that were a mainstay of Scalia's style — as was seen in the second case heard on Monday, a case involving the contours of the rules about when police misconduct taints evidence such that it should be not be allowed to be admitted as evidence.

Generally speaking, if police violate the Fourth Amendment in detaining a person — do so with no reasonable, individualized suspicion that can be explained — then things found in a search are "suppressed" from being used against a person in court. This is known as the exclusionary rule.

The case presents the question of whether drugs found on the defendant, Edward Strieff, should be able to be used against him. The facts are a little complicated, but it's a scenario that arises often enough that the court decided to address it. When the police initially detained Strieff, they did so illegally. But while detained, they ran a warrant check and determined there was an outstanding warrant for his arrest. At that point, they searched him and found methamphetamine and drug paraphernalia.

Utah, backed by the Obama administration, argued that the initial reason Strieff was stopped — part of an investigation of an anonymous tip about a house where drugs were allegedly being sold — was a "miscalculation" but "a close call." They then further argue that the discovery of the warrant was an "intervening" circumstance that justified the search. As such, the state pressed, the drugs should be allowed into evidence so long as the initial illegal detention wasn't a "flagrant" violation of the Fourth Amendment, which they say it wasn't.

Strieff's lawyer, on the other hand, argued that warrant search conducted by the police was "an inherent part of the arrest" and could not be considered an intervening event. As such — and the Utah Supreme Court agreed — the drugs are out.

The justices appeared split over whether the drugs should be allowed to be admitted into evidence — a case where the absence of Scalia, who generally supported weakening the exclusionary rule — could make the difference.

Justice Sonia Sotomayor made it clear from the start that she found the idea of allowing an outstanding warrant to count as an intervening circumstance that basically made up for the earlier Fourth Amendment violation to be very troubling.

"What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?" she asked.

"An officer can never count ... on finding a warrant," Utah Solicitor General Tyler Green said. "So there is no incentive for him to make that stop."

Sotomayor was just getting started, though, showing her familiarity with police and local court processes in a way that often is missing from the high court — and that came into play throughout the arguments.

"If you have a town like Ferguson, where 80% of the residents have minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, 'Give me your ID; let me see your name.' And let me hope, because I have an 80% chance that you're going to have a warrant."

At that point, Green moved to the other part of his argument, noting, "There still must be a separate inquiry into whether the predicate stop was flagrant ...."

As the argument wore on, some of the harshest questioning faced by Strieff's lawyer, Joan Watt, came from Chief Justice Roberts, who asked why she was claiming that the purpose of the stop was to check for arrest warrants.

"In your brief you say several times ... the purpose is to ­­ to run the warrants check," Roberts said. "And I just want to know why that's the case."

After a significant exchange about the purpose — which included Sotomayor checking back in to note that "[t]here was no suspicion here," Strieff "wasn't frisked" — Roberts took the lead in questioning again, raising the issue of police officer safety as a reason for the need to run the warrant check.

"How often are ...­­ people stopped driving, an officer walks up to the car and they're shot? Has that happened a fair amount of times?" Roberts asked, later adding of reasons to run a warrant check, "It seems to me not wanting to get shot's a pretty good reason."

Through it all — following some tough exchanges between Sotomayor or Justice Elena Kagan and Utah's lawyer or the Obama administration lawyer, John Bash from the Solicitor General's Office, and other tough exchanges between Roberts or Justice Samuel Alito and Strieff's lawyer — the sharpest exchange of the day was between two justices.

When Watt, Strieff's lawyer, argued that the rule proposed by Utah could create an incentive for jurisdictions to "have even more warrants for even more minor infractions," Alito seemed incredulous.

"Do you think the judges in the traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people?" he asked.

After a brief response from Watt, Sotomayor jumped in.

"I'm very surprised that Justice Alito doesn't know that most of these warrants are automatic," Sotomayor said. "If you don't pay your fine within a certain amount of days, they're issued virtually automatically."

"Right," Watt replied.

Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.